The Government is
proposing amendments to establish a ‘Registration and
Accountability of Organisations Schedule’ within the
Workplace Relations Act 1996 rather than creating a separate
Act pertaining to registered organisations.

The Government is
also proposing substantive amendments to:

·
establish a Registration and Accountability of Organisations
Schedule to the Workplace Relations Act (rather than a stand alone
organisations Act);

·
ensure that the mere fact that members of an enterprise association
own shares in their firm does not necessarily render such an
association ineligible for registration by reason of
‘improper control’ by an employer;

·
extend the powers of the Commission to make exclusive
representation orders in cases where a dispute is likely to occur
which could cause damage or harm to the business of an
employer;

·
make a number of amendments designed to protect the security of
declaration envelopes and ballot material generally;

·
give the Court power to make orders for rectification of the breach
of an organisation’s rules in cases where the relevant
individual was no longer a member or officer of the organisation,
and to make orders that compensation be made to the organisation as
a result of breaches of its rules;

·
delete Part 3 of Chapter 9 of the Bill (concerning general duties
of officers and employees of organisations to observe orders and
directions of the Court and Commission); and

·
make various minor technical amendments to clauses 6, 94 and
357.

FINANCIAL IMPACT STATEMENT

The proposed
amendments are not expected to have any impact on Commonwealth
expenditure .

NOTES ON AMENDMENTS

The Amendments
are dealt with in subject groupings in the order set down in the
Outline.

Conversion of RAO Bill to
WR Act Schedule

Amendment No. 1
- Title, page 1 (line 1)

1.
Amendment No. 1 would insert the words ‘to amend the
Workplace Relations Act 1996 ’ in the title of the
Bill.

Amendment No. 2 - Heading to
Chapter 1, page 2 (line 1)

2.
Amendment No. 2 would omit the heading to Chapter 1.

Amendment No. 3 - Heading to
Part 1, page 2 (line 2)

3.
Amendment No. 3 would omit the heading to Part 1 of Chapter 1.

Amendment No.
4 - Clause 1, page 2 (line 5)

4.
Amendment No. 4 would amend the citation of the Act.

Amendment No. 5 - Clause 2, page 2 (table and note)

Amendment No. 6 - Clause 3, page 3
(lines 3 to 6)

Amendment No.
7 - Schedule 1, page 3, after proposed item 1

5.
As noted in the Outline, the substantive provisions proposed by the
Bill as introduced into the House are to be converted to amendments
contained in a new Schedule 1 to the Bill.

6.
Amendments No. 5 and 6 amend the commencement provisions to account
for the fact that the substantive provisions of the Bill are now
contained in a schedule to the Bill.

7.
Amendment No. 6 also omits existing Clause 3, which provides for
the application of the Act to the Crown. A similar clause,
proposed Clause 5A, would be inserted into the Schedule by
amendment No. 11. The clause has been amended to replace
references to ‘this Act’ with ‘this
Schedule’.

8.
Amendment No. 7 also inserts new Schedule 1 into the Bill; this new
schedule will provide for the insertion of Schedule 1B to the WR
Act. The amendment inserts the schedule heading and provides
an overview of Chapter 1 to Schedule 1B.

Amendment No.
8 - Heading to Part 2, page 4 (line 2)

9.
Amendment No. 8 would omit the heading.

Amendment No. 9
- Clause 4, page 4 (lines 4 to 10)

10.
Amendment No. 9 would remove clause 4 of the Bill (which provided a
simplified outline of Part 2 of Chapter 1 - this is to be
replaced by an overview to the Chapter: see Amendment No. 7).

Amendment No.
10 - Clause 5, page 4 (lines 11 to 28)

11.
Clause 5 set out the objects for the proposed Act, including that
of ensuring that organisations are representative of and
accountable to their members, and are able to operate
effectively. This reflects existing paragraph 3(g) of the WR
Act. Amendment No. 10 replaces the references to ‘this
Act’ with ‘this Schedule’ both in the clause and
the legislative note.

Amendment No. 11
- Page 4 (after line 28), after clause 5

12.
Amendment No. 11 would insert a new clause 5A to provide that the
Crown, in all its capacities, will be bound by Schedule 1B,
although nothing in the Schedule renders the Crown liable to be
prosecuted for an offence. The clause is substantially the
same as the clause that was omitted by Amendment No. 6.

Amendment No. 12 - Clause 6, page 4
(line 30)

Amendment No. 14 - Clause 6, page 8
(line 3)

Amendment No. 15 - Clause 6, page 9
(line 14)

Amendment No. 17 - Clause 6, page 11
(line 21)

Amendment No. 18 - Clause 6, page 11
(line 23)

Amendment No. 19 - Clause 6, page 11
(line 24)

Amendment No. 25 - Clause 7, page 13
(line 2)

Amendment No. 26 - Clause 7, page 14
(line 18)

Amendment No. 27 - Clause 8, page 14
(line 25)

Amendment No. 28 - Heading to
subclause (2), page 15 (line 9)

Amendment No. 29 - Clause 8, page 15
(line 10)

Amendment No. 30 - Heading to
subclause (4), page 15 (line 16)

Amendment No. 31 - Clause 8, page 15
(line 22)

Amendment No. 32 - Clause 9, page 16
(line 3)

Amendment No. 33 - Clause 9, page 17
(line 1)

Amendment No. 34 - Clause 10, page 17
(line 6)

Amendment No. 35 - Clause 10, page 17
(line 16)

Amendment No. 36 - Clause 10, page 17
(line 27)

Amendment No. 37 - Clause 11, page 18
(line 2)

Amendment No. 38 - Clause 11, page 18
(line 8)

Amendment No. 39 - Clause 12, page 18
(line 13)

Amendment No. 40 - Clause 13, page 18
(line 24)

Amendment No. 41 - Clause 13, page 18
(line 27)

Amendment No. 42 - Clause 14, page 19
(line 4)

Amendment No. 43 - Clause 14, page 19
(line 17)

Amendment No. 44 - Clause 14, page 19
(line 21)

Amendment No. 46 - Clause 16, page 20
(line 3)

Amendment No. 47 - Clause 16, page 20
(line 5)

Amendment No. 51 - Clause 19, page 24
(line 26)

Amendment No. 52 - Clause 19, page 24
(line 29)

Amendment No. 53 - Clause 19, page 25
(line 4)

Amendment No. 54 - Clause 19, page 25
(line 30)

Amendment No. 55 - Clause 20, page 26
(line 21)

Amendment No. 56 - Clause 20, page 26
(line 24)

Amendment No. 57 - Clause 20, page 27
(line 2)

Amendment No. 59 - Clause 21, page 28
(line 26)

Amendment No. 60 - Clause 22, page 29
(line 23)

Amendment No. 61 - Clause 25, page 32
(line 8)

Amendment No. 62 - Clause 25, page 32
(line 14)

Amendment No. 63 - Clause 25, page 32
(line 16)

Amendment No. 64 - Clause 26, page 33
(line 1)

Amendment No. 65 - Clause 26, page 33
(line 6)

Amendment No. 67 - Clause 28, page 34
(line 21)

Amendment No. 68 - Clause 28, page 36
(line 12)

Amendment No. 69 - Clause 29, page 36
(line 32)

Amendment No. 70 - Clause 29, page 36
(line 33)

Amendment No. 71 - Clause 31, page 39
(line 26)

Amendment No. 72 - Clause 32, page 39
(line 31)

Amendment No. 73 - Clause 32, page 40
(line 2)

Amendment No. 74 - Clause 36, page 47
(line 2)

Amendment No. 75 - Clause 38, page 48
(line 24)

Amendment No. 76 - Clause 38, page 49
(lines 17 and 18)

Amendment No. 77 - Clause 55, page 63
(line 20)

Amendment No. 78 - Clause 55, page 63
(line 24)

Amendment No. 79 - Clause 57, page 66
(line 13)

Amendment No. 80 - Clause 60, page 71
(line 11)

Amendment No. 81 - Clause 62, page 74
(line 12)

Amendment No. 84 - Clause 65, page 76
(line 27)

Amendment No. 85 - Clause 73, page 83
(line 16)

Amendment No. 86 - Clause 73, page 83
(line 21)

Amendment No. 88 - Clause 87, page 90
(line 7)

Amendment No. 89 - Clause 92, page 95
(line 7)

Amendment No. 92 - Clause 96, page
101 (line 6)

Amendment No. 93 - Clause 97, page
101 (line 17)

Amendment No. 98 - Clause 133, page
129 (line 12)

Amendment No. 99 - Clause 133, page
129 (line 17)

Amendment No. 100 - Clause 133, page
129 (line 21)

Amendment No. 102 - Clause 135, page
130 (line 28)

Amendment No. 103 - Clause 140, page
133 (line 6)

Amendment No. 104 - Clause 140, page
133 (line 7)

Amendment No. 105 - Clause 142, page
135 (line 9)

Amendment No. 106 - Clause 142, page
135 (line 22)

Amendment No. 107 - Clause 142, page
135 (line 24)

Amendment No. 108 - Clause 144, page
138 (line 2)

Amendment No. 109 - Clause 146, page
140 (line 23)

Amendment No. 110 - Clause 150, page
145 (line 4)

Amendment No. 111 - Clause 150, page
145 (line 5)

Amendment No. 112 - Clause 151, page
145 (line 28)

Amendment No. 113 - Clause 151, page
146 (line 1)

Amendment No. 114 - Clause 151, page
146 (line 12)

Amendment No. 115 - Clause 152, page
148 (line 9)

Amendment No. 116 - Clause 156, page
151 (line 5)

Amendment No. 117 - Clause 156, page
151 (line 10)

Amendment No. 118 - Clause 158, page
152 (line 31)

Amendment No. 119 - Clause 158, page
153 (line 5)

Amendment No. 121 - Clause 159, page
153 (line 31)

Amendment No. 123 - Clause 160, page
154 (line 23)

Amendment No. 124 - Clause 161, page
155 (line 2)

Amendment No. 132 - Clause 170, page
166 (line 2)

Amendment No. 133 - Clause 175, page
170 (line 6)

Amendment No. 135 - Clause 186, page
177 (line 15)

Amendment No. 136 - Clause 186, page
177 (line 22)

Amendment No. 139 - Clause 205, page
196 (line 16)

Amendment No. 142 - Clause 230, page
212 (line 30)

Amendment No. 143 - Clause 329, page
219 (line 23)

Amendment No. 144 - Clause 246, page
224 (line 8)

Amendment No. 145 - Clause 249, page
225 (line 27)

Amendment No. 146 - Clause 253, page
228 (line 29)

Amendment No. 147 - Clause 256, page
233 (line 9)

Amendment No. 148 - Clause 257, page
235 (line 3)

Amendment No. 149 - Clause 261, page
238 (line 20)

Amendment No. 150 - Clause 281, page
255 (line 10)

Amendment No. 152 - Clause 285, page
257 (line 33)

Amendment No. 153 - Clause 290, page
259 (line 23)

Amendment No. 154 - Clause 293, page
261 (line 10)

Amendment No. 163 - Clause 329, page
290 (line 5)

Amendment No. 164 - Clause 338, page
297 (line 7)

Amendment No. 165 - Clause 338, page
297 (line 8)

Amendment No. 166 - Clause 338, page
297 (line 9)

Amendment No. 167 - Clause 338, page
297 (line 10)

Amendment No. 168 - Clause 338, page
297 (line 12)

Amendment No. 169 - Clause 338, page
297 (line 13)

Amendment No. 170 - Clause 338, page
297 (line 19)

Amendment No. 171 - Clause 339, page
297 (line 26)

Amendment No. 173 - Clause 340, page
298 (line 4)

Amendment No. 174 - Clause 341, page
298 (line 28)

Amendment No. 175 - Clause 343, page
300 (line 8)

Amendment No. 176 - Clause 344, page
300 (line 10)

Amendment No. 177 - Clause 344, page
300 (line 27)

Amendment No. 179 - Clause 351, page
303 (line 27)

Amendment No. 180 - Clause 352, page
304 (line 2)

Amendment No. 181 - Clause 353, page
304 (line 12)

Amendment No. 182 - Clause 353, page
304 (line 14)

Amendment No. 183 - Clause 354, page
304 (line 25)

Amendment No. 184 - Clause 354, page
304 (line 27)

Amendment No. 186 - Clause 358, page
306 (line 13)

Amendment No. 187 - Clause 359, page
306 (line 28)

Amendment No. 188 - Clause 359, page
307 (line 2)

Amendment No. 189 - Clause 359, page
307 (line 7)

Amendment No. 190 - Clause 359, page
307 (line 10)

Amendment No. 191 - Clause 359, page
307 (line 18)

Amendment No.
192 - Clause 359, page 307 (line 27)

13.
Each of these amendments is consequential to the insertion of
Schedule 1B to the WR Act. They replace all references to the
“Act” or “this Act” with references to the
“Schedule”, “this Schedule” or
“Schedule, the Workplace Relations Act”, as
appropriate.

Amendment No. 20 - Clause 6, page 11 (line 24)

Amendment No. 66
- Clause 26, page 33 (line 8)

14.
These amendments would amend the legislative notes to clauses 6 and
26, respectively, to reflect the change in name of the related
Consequential Provisions legislation - from Workplace
Relations (Registration and Accountability of
Organisations)(Consequential Provisions) Act 2002 to
Workplace Relations Legislation Amendment (Registration
and Accountability of Organisations) (Consequential Provisions) Act
2002 .

Amendment
No. 21 - Clause 6, page 12 (line 27)

15.
Amendment No. 21 would substitute a definition of ‘this
schedule’ for the definition of ‘this Act’, and
provide that it includes regulations made under Schedule 1B of the
WR Act.

Amendment
No. 23 - Clause 6, page 12 (lines 28 and 29)

16.
Amendment No. 23 would amend the definition of the ‘Workplace
Relations Act’ to exclude reference to Schedule 1B of the WR
Act as well as any regulations made under clause 338 of that
Schedule.

Amendment
No. 24 - Page 12 (after line 29), after clause 6

17.
Amendment No. 24 would insert a new clause 6A to provide that in
Schedule 1B a reference to a provision is a reference to a
provision of that Schedule, unless the contrary appears. For
instance, the reference to ‘section 16’ in subclause
17(1) would be taken to be a reference to section 16 of Schedule
1B.

Amendment
No. 45 - Clause 15, page 19 (lines 26 to 32)

18.
Amendment 45 would make clear that Part 2.5 of the Criminal
Code does not apply to offences against the Schedule.
Legislative note 1 to Clause 15 would amend two references to
‘this Act’ with ‘this Schedule’.
Legislative note 2 advises that for the purposes of the Schedule
corporate responsibility is dealt with by section 344, rather than
part 2.5 of the Criminal Code .

Amendment
No. 48 - Clause 18, page 22 (line 21)

Amendment
No. 49 - Clause 18, page 22 (line 30)

Amendment No. 50
- Clause 18, page 23 (after line 7), at the end of the
clause

19.
Amendments No. 48 and 49 would make technical amendments to Clause
18 consequential upon the changes proposed by amendment No. 50.

20.
Amendment 50 would insert new subclause 18(3) to incorporate the
provisions previously contained in Schedule 1 of the Bill into
Schedule 1B.

Amendment
No. 87 - Clause 80, page 86 (line 22)

Amendment No. 97
- Clause 117, page 116 (line 5)

21.
As a consequence of converting the Bill to a Schedule, Amendments
No. 87 and 97 would insert a reference to the Workplace Relations
Act.

22.
Amendments No. 120 and 122 would make technical amendments to
Clauses 158 and 159, respectively, consequential upon changes
proposed by Amendments No. 193 and 195, by substituting references
to ‘Part 3 of Schedule 2’ with references to
‘Division 4 of Part 7 of Chapter 11’.

23.
Amendment No. 195 will remove Schedule 2 of the Bill as introduced
(the text of this Schedule is to be inserted into the body of a new
Schedule 1B, to avoid the need for a Schedule to a Schedule).

24.
Amendment 193 would insert new Part 7 into Chapter 11 to Schedule
1B to the WR Act to incorporate provisions previously contained in
Schedule 2 of the Bill. These provisions deal with matters
arising from the dual registration of organisations within both the
federal and State systems (ie the registration of organisations
under the WR Act and the registration of the branches of such
organisations under State workplace relations legislation).

Amendment
No. 158 - Clause 317, page 275 (lines 5 to 21)

25.
Amendment No. 158 would substitute a new Clause 317 to provide a
new simplified outline of the content of Chapter 11. The new
outline would amend two references in the earlier outline to
‘this Act’ and reflects the proposed addition of Part 7
into Chapter 11.

Amendment
No. 178 - Clause 344, page 300 (line 33)

26.
This amendment would amend the legislative note to Clause 344 to
replace two references to ‘this Act’ with ‘this
Schedule’.

Amendment No. 194
- Schedule 1, page 309 (lines 1 to 18)

27.
Amendment No. 194 would remove Schedule 1 of the Bill to avoid the
need for a Schedule to a Schedule. This amendment is
consequential on the amendment to be made by amendment No. 193.

Registration Criteria

Amendment No.
58 - clause 20, page 27 (line 3), after subclause (1)

28.
Chapter 2 of the Workplace Relations (Registration and
Accountability of Organisations) Bill 2002 (the Bill) deals with
the registration of organisations and enterprise
associations.

29.
The Bill as currently drafted allows the Australian Industrial
Relations Commission (the Commission) to register an enterprise
association provided it is:

‘free from control by, or improper influence from:

(i) any employer,
whether at the enterprise in question or otherwise; or

(ii) any person or body
with an interest in that enterprise; or

(iii) any organisation, or any
other association of employers or employees.’
(Paragraph 20(1)(b) refers)

30.
Amendment No. 58 will address a decision by the Australian
Industrial Relations Commission (AIRC) that found that the
Suncorp-Metway-QIDC Enterprise Union (SMQEU) was ineligible for
registration on the basis that, among other things, the SMQEU was
not free from ‘control or improper influence from…a
person with an interest in the enterprise’. This was
due to the fact that members of the SMQEU, including members of its
committee of management, held shares in the enterprise and
therefore had an interest in the enterprise.

31.
Amendment No. 58 inserts new subsection 20(1A) to make it clear
that the mere holding of an interest in an enterprise in question
by members of the association is not, in itself, sufficient to
determine that the enterprise association breaches the requirement
in paragraph 20(1)(b). Rather, the focus is on whether
the enterprise association is free from control by, or improper
influence from the person or organisation.

Exclusive Representation
Orders

Amendment No. 101 - Clause 134, page 130
(line 16)

32.
Clauses 134 to 138 of the Bill (which are similar in form to
section 118A of the WR Act) would limit the Commission’s
power to make exclusive representation orders to situations where
there is a demarcation dispute in progress and it is satisfied that
conduct of an organisation involved in that dispute is preventing
the performance of work, or is harming the business of an employer,
or there is an imminent risk that this will occur (subclause 134(2)
refers).

33.
Amendment No. 101 will insert new paragraph (c) into
subclause 134(2) to extend the circumstances in which an order
can be made, to cover cases where a dispute is likely to occur and
that dispute is likely to cause damage to the performance of work
or harm to the business of an employer.

Declaration
envelopes

‘ In the
approved form ’

Amendment No. 13
- Clause 6, page 5 (lines 2 and 3)

Amendment No. 83
- Clause 65, page 77 (line 8)

Amendment No. 95
- Clause 102, page 103 (line 17)

Amendment No. 134 -
Clause 188, page 178 (lines 22 to 30)

34.
Clause 6 of the Bill contains a definition of ‘declaration
envelope’; it ‘…means an envelope in the form
prescribed by the regulations on which a voter is required to make
a declaration containing the prescribed information’.

35.
Subclauses 65(7), 102(2)(d) and 188(b) require the declaration
envelope used in the relevant postal ballots to which those
provisions refer to be in the ‘approved form’.
‘Approved’ is defined in clause 6 as, ‘in
relation to the conduct of an election or ballot, means approved by
the AEC by notice published in the Gazette’ . The
use of the word ‘approved’ is inconsistent with the
definition of ‘declaration envelope’.

36.
To ensure consistency with the definition of ‘declaration
envelope’, amendment No. 13 will delete the definition
of ‘approved’ from clause 6 of the Bill.
Amendment No. 95 will remove the reference to ‘an approved
form’ from paragraph 102(2)(d). Similarly, amendment
No. 83 will omit subclause 65(7) as it is redundant.

37.
Paragraph 188(b) currently makes reference to declarations being in
an approved form. As a consequence of amendment No. 134, and
other amendments, clause 188 is being replaced by a new
clause. As well as including a requirement for outer
envelopes to be used (explained in more detail below), the clause
is being redrafted to remove any references to the ‘approved
form’ (amendment No. 134 refers).

38.
Subclauses 65(7), 102(2)(d) and 188(b) are the only places in the
Bill where the word ‘approved’ (as defined in clause 6)
is used.

‘ Outer
envelopes ’

Amendment No. 22 - Clause 6, page 11
(line 28)

Amendment No. 82 - Clause 65, page 77
(line 4 to 7)

Amendment No. 90 - Clause 94, page 99
(line 5)

Amendment No. 94 - Clause 100, page
102 (line 7)

Amendment No. 96 - Clause 102, page
103 (lines 18 to 20)

Amendment No.
134 - Clause 188, page 178 (lines 22 to 30)

39.
The Bill provides that declaration envelopes must be used in all
secret postal ballots. In this context, one possible concern
is the scope that may exist for identification of declaration
envelopes in the course of post from the elector to the Australian
Electoral Commission.

40.
At present, the Bill does not require the AEC to include an outer
envelope in the ballot material provided to voters, unless the
rules of the relevant organisation require an outer envelope to be
used.

41.
To ensure the security of declaration envelopes when they are
returned to the AEC, amendments will be undertaken to require that
they be returned in an ‘outer envelope’.
Accordingly, amendment No. 22 amends the definition of postal
ballot, to ensure that the AEC must provide each voter with a
ballot paper, a declaration envelope and an outer envelope (the
form of which is to be specified in the regulations).

42.
Amendments No. 82 and 96 will make amendments to clauses 65 and 102
to reflect this new process. The amendments in amendment No.
134 will achieve a similar outcome for clause 188 (as well as
removing the reference to the ‘approved form’).

43.
Amendments No. 90 and 94 make minor technical amendments to
clauses 94 and 100 to correct the terminology used (ie. to
ensure the provisions refer to a ‘secret postal
ballot’).

Security of Ballot Material
Generally

Amendment No. 137 - Clause 193, page
181 (line 20)

Amendment No.
138 - Clause 193, page 181 (lines 21 to 23)

44.
As a general rule, the AEC observes the requirements in the rules
of the organisation in ensuring the security of ballot
material. There may be circumstances, however, where the AEC
should have the ability to depart from the requirements laid down
in the rules of an organisation. Clause 193(1)(b) thus
provides that an electoral official may, in spite of the rules of
an organisation, take such action as necessary to ensure that no
irregularities occur in relation to the election, or in order to
remedy any procedural defects that appear to exist in the
rules. This replicates section 215(1)(b) of the WR Act.

45.
Amendment No. 137 would amend clause 193 of the Bill to make
express that the AEC may take whatever steps are necessary to
ensure the security of ballot papers and envelopes that are to be
used (or have been used) in an election. Amendment
No. 138 will make minor consequential amendments by removing
the note to clause 193(1)(b).

Directions to perform and observe
rules

Amendment No. 125 - Heading to Part 3, page 156 (line 2)

Amendment No. 126 - Clause 164, page 159 (lines 1 to 13)

Amendment No. 127 - Heading to subclause (9), page 159 (line
14)

Amendment No. 128 - Clause 164, page 159 (line 16)

Amendment No. 129 - Page 159 (line 20) at the end of Part
3

Amendment No. 130 - Page 159, at the end of Part 3 (after
proposed section 164A)

Amendment No. 131 - Page 159, at the end of Part 3 (after
proposed section 164B)

46.
Clause 164 of the Bill (which replicates section 209 of the WR
Act), would entitle a member of an organisation to apply to the
Federal Court for an order directing another person to perform or
observe the rules of the organisation. Such an order can only
be directed to a person who is under an obligation to perform or
observe the relevant rule or rules of the organisation (see
subclause 164(a)).

47.
In Darroch and ors v Tanner (1987) 74 ALR 559, a Full Court
of the Federal Court held that it only had the power to give
directions to persons who, at the time of the giving of the
directions , were under an obligation to perform or observe the
rules. The Court found that it did not have the power to make
orders directing a person to take action to rectify a past
breach of the rules, unless there was a continuing obligation on
the relevant person to perform or observe the relevant rules.
Amendments No. 125 to 131 and 159 to 161 and 172 will amend
the Bill to give the Court such a power.

48.
New clauses 164A and 164B will be inserted in the Bill after
current clause 164. Amendment No. 129 would insert new clause
164A, which will give the Federal Court power to make an order in
circumstances where a person, who was under an obligation to
perform or observe rules of an organisation, has breached those
rules. In particular, the provision would apply when the
person either spent funds or used resources, or authorised the
spending of funds or use of resources in breach of those
rules. An order could not be made against a person unless
that person acted unreasonably in spending the funds or authorising
the use or the resources.

49.
If these conditions are satisfied, then the Court could order the
person to compensate the organisation for any damage suffered as a
consequence of the breach. The compensation may be by way of
payment of money or otherwise.

50.
New clause 164B is similar to clause 164A, but applies in
situations where the breach committed by the person does not relate
to the spending of funds or use of resources (or the authorisation
to do so). In such a case, the Court may order a person,
whether or not they were the person who breached the rules, to take
actions that would rectify the effects of the breach of the
rules. In effect, the provision is directed to placing the
organisation in the position that it would have been if the breach
had not occurred (Amendment No. 130 refers).

51.
Currently, clause 164 includes a number of provisions detailing the
procedures or implications consequential on the operation of the
provision. For instance, subclause 164(6) specifies that
an order of the Court may not invalidate an election.
Subclauses 164(7) and (8) allow the Court to consider whether the
rules of the organisation contravene section 142 and, if so, to
make a declaration to that effect. Subclause 164(8) extends
the operation of the procedural provisions in clause 163 to orders
made under subclause 164(7). Finally, subclause 164(9) lays
down two definitions, one for ‘election’ and the other
explaining the meaning of ‘order under this
section’.

52.
These provisions apply equally to proposed clauses 164A and
164B. Accordingly, amendment No. 126 would delete these
subclauses, while amendment No. 131 would insert a new
provision, clause 164C, which mirrors subclauses 164(6) to (8)
but will apply equally to clauses 164, 164A and 164B.
Amendment No. 127 makes minor consequential amendments to the
heading of clause 164 while amendment No. 128 will omit the
definition of election from clause 164. An equivalent
definition will be included in new subclause 164C(4).

53.
Amendment No. 125 will make minor consequential amendments to the
heading to Part 3 to reflect the changes in amendments No 129 to
131. Similarly, amendments No. 159 to 161 and 172 make
similar consequential amendments to clauses 324, 326 and 339, by
including references to the new provisions, as appropriate.

54.
Chapter 9 of the Bill sets out a range of duties of officers and
employees of organisations. Part 3 of Chapter 9 sets out the
general duties of officers and employees in relation to orders or
directions of the Federal Court or the Commission.

55.
Amendments No. 140, 141, 151 and 155 to 157 will delete Part 3 of
Chapter 9 and make other minor technical amendments as a
consequence.

Technical amendments

‘Correct cross-reference’

Amendment
No. 16 - Clause 6, page 11 (line 1)

Amendment No. 16
is a technical amendment to correct a cross-reference in Clause 6
to the definition of ‘irregularity’.

‘Withdrawal from amalgamation’

Amendment No.
91 - Clause 94, page 99 (lines 14 to 22)

56.
Part 3 of the Bill sets down a process for organisations to
withdraw from amalgamations. Amendment No. 91 will make
technical amendments to clause 94 of Part 3 of the Bill.

57.
Under section 253ZJ of the WR Act, a constituent part of an
organisation that amalgamated prior to 31 December 1996 was given
three years within which it could apply to the Federal Court for a
disamalgamation ballot. Constituent parts that became part of
an amalgamated organisation after that date were allowed 5 years to
apply for a ballot. Clause 94 of the Bill is intended to
operate in the same manner as section 253ZJ.

58.
However, there are technical deficiencies with clause 94 as
currently drafted. Amendment No. 91 will correct this
reference to ensure that the provision operates as it currently
does in the WR Act.

‘Reference to Consolidated Revenue
Fund’

Amendment No.
185 - Clause 357, page 306 (lines 5 to 10)

59.
Paragraph 357(a) of the Bill provides that a court that imposes a
monetary penalty under this Act (other than a penalty for an
offence) may order that the penalty or part thereof be paid into
the Consolidated Revenue Fund. The reference to the
Consolidated Revenue Fund is not consistent with current financial
management terminology.

60.
Consequently, Amendment No. 185 amends paragraph (a) of clause 357
to replace the words ‘into the Consolidated Revenue
Fund’ with the words, ‘to the
Commonwealth’. This amendment would ensure that the
terminology used in the provision reflects current financial
management terminology in Commonwealth legislation.